Intellectual Property - Is It Worth Protecting?

22 May 2018

Intellectual property (or IP) rights are essential for most businesses, although they might not always realise it, and are often core to the tradable value of a brand. They should therefore form part of an overall business strategy and not be left to deal with as and when a particular need arises, such as when a design is copied or a trade mark misused. Here we look at the importance of having an IP strategy and how to enforce your IP rights.

Part 1: The importance of an IP strategy

In a digital world especially, the ambit of the term IP rights has expanded and there is now a greater recognition at business as well as government level that IP is a key part of Britain’s economy, particularly in the creative sector. IP is a key part of business strategy, so IP needs to be understood and protected. However, whilst IP rights can create benefits for businesses, they can also create pitfalls if they are not handled carefully or protected adequately.

The failure to protect IP rights usually arises from a lack of education about IP and what it can protect. Even though some rights are automatic (copyright and design rights are good examples), there are steps which businesses need to be mindful of when creating works in which even automatic rights subsist, such as the need to evidence the creative process in order to help prove your rights should you need to. Many designers fail to keep detailed records of their design processes, often over-writing digitally created design documents with later variations and destroying the valuable “IP audit trail”. Sometimes it is just a case of not tidying up the IP rights and leaving them in someone else’s hands which leads to problems, such as what happens if the parties fall out - how are the rights going to be recovered then? These issues often do not arise until the rights are needed for a specific purpose, such as the sale of the business or an enforcement issue.

There is often also a reticence to invest in the protection of IP. Although unregistered protection is often a good fall back option, certain types of right can be strengthened considerably by registration (trade marks, designs and patents are the three registrable rights in the UK) due to the way in which registered rights are enforced, compared with unregistered IP rights. For example, in the case of registered designs, there is no need to prove copying in order to enforce the right in a design. This also makes them more valuable to investors and more businesses in the creative industries are starting to realise this.

What many people in the creative sector complain about, however, is the fact that copyright, which is an unregistered right, has the benefit of criminal sanctions for deliberate infringement, but unregistered design rights do not, which still leaves a hole in our IP defences. So, for example, selling a pirate DVD will potentially be a criminal offence, but copying an unregistered design for a new style of DVD case will not.

Part 2: Enforcing your IP rights

As valuable as IP rights can be, they are no good if they can’t be enforced. Businesses often fear litigation in the UK because of its reputation for being expensive. This in turn makes them reluctant to protect their intellectual property investments, particularly where they are facing infringements across multiple jurisdictions and the costs of enforcing their rights internationally.

The IP Enterprise Court (IPEC) provides a more cost-effective and more streamlined means of resolving IP disputes than the High Court (where IP cases typically end up). It has quickly become a very popular venue for IP litigation. Whilst the IPEC can provide a more cost-efficient and quicker alternative to High Court proceedings, actions need to be planned carefully to concentrate on the strongest claims and control costs.

In the last few decades, we have come a long way in recognising the value of IP and protecting it, but there is a lot more to be done to harness its full potential. A new threat to IP now looms in the shape of Brexit. What will happen to EU-based IP rights in the UK is unclear at the moment, but watch out for our updates.